S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION

Transcription

1 2008 ACO # 196 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION DALE N. JACKO, PLAINTIFF, V DOCKET # GENERAL MOTORS CORPORATION, DEFENDANT. APPEAL FROM MAGISTRATE HARRIS. DAVID M. STEWART FOR PLAINTIFF, BRUCE L. DALRYMPLE FOR DEFENDANT. GLASER, CHAIRPERSON OPINION Defendant appeals the decision of Magistrate Michael T. Harris, mailed on October 2, 2007, granting plaintiff an award of medical care, attendant care and a health club membership, as well as an attorney fee on medical. We modify as to attendant care and affirm the remainder of the magistrate s decision. This case was initiated by plaintiff filing an Application for Mediation or Hearing on June 26, 2006 and amending on February 8, 2007, seeking reasonable and necessary medical care including mileage, prescriptions and nursing/attendant care, as well as an attorney fee on unpaid medical. At trial on August 30, 2007, the parties stipulated that defendant was paying wage loss benefits on a voluntary basis and the only issues to be determined by the magistrate were: 1) entitlement to attendant care benefits; 2) the rates of any ordered attendant care; 3) a health club membership for plaintiff for swimming; 4) reimbursement for out-of-pocket and mileage expenses and; 5) whether plaintiff s counsel was entitled to an attorney fee on the University of Michigan medical expenses that were paid to the hospital instead of through plaintiff s counsel. The magistrate found in the affirmative on all of plaintiff s requests. Defendant filed the instant appeal, citing error on three specific findings. The magistrate set forth a brief and concise summary of plaintiff and his wife s testimony at trial, in his opinion. We reprint relevant portions of that summary here for reference:

2 DALE JACKO, plaintiff, testified that he had a surgery to his back that included placing titanium rods in his back and fusing four vertebrae. He was hospitalized a week and then left to convalesce at home with assistance. He was in bed about 95% of the time for the first 30 days. To get out of bed he had to don a shell to keep his spine from moving and needed help with putting that on and taking it off. Whoever was there would assist him and otherwise he used the bedpan, but also with assistance. The first week, his wife took care of him because she took off work. After that, his wife s son and sister would stop by to help. Sherry Blondin was the sister and Eric is the name of the wife s son. Plaintiff also had to be assisted in meal fixing, bathing, and wound care. His wife did the wound care. His wife gave him his medications and took him to doctor appointments. He had to be helped to dress as well. Plaintiff says his wife did this for three or four months. Her statement says from 1/9/06 through 3/25/06 she did more than 56 hours per week, and from 3/26/06 to 4/29/06, at 28 hours per week. Plaintiff does not remember because he was on Oxycontin during that time. * * * The first time he had a surgery GM provided the attendant care personnel, and the people they provided wouldn t do the work he needed. In the past, GM has paid his bills for attendant care. Plaintiff is unaware of any unpaid medical bills. * * * Plaintiff says he drives a ways to a certain pharmacy for his meds because GM asked him to pick one pharmacy, and the one that has a certain medication is the closest one to him, so he gets all his meds there. The drugs that are crossed off Exhibit 6 are not claimed for reimbursement. Eric and Sherry provided all their care during the first month. He wrote down when they came in and when they left, and from that calendar book he marked he prepared exhibits for the attendant care. Eric lived with a couple of buddies and a girl-friend and has no medical training. His wife did anything that required real medical care. * * * LINDA JACKO, Plaintiff s wife, is a medical assistant and her hourly rate there is $ She provided at least 56 hours per week between January 9 and March 25[,] 2006 while taking care of him. She gave him meds, and bathed him, took his vitals, did his laundry, helped him in and out of bed, and did virtually everything for him because he was helpless to do anything. She would prepare meals as well. She also had to pick up some household duties he used to do while she was at work. 2

3 As of 3/26/06 she provided 28 hours a week of services. It was 3 months before he could drive, around the first of May. She says that Eric Tallman is her son and provided help for Dale. He fixed and served meals, emptied urinals and was there if needed for other things. Cross: She was not there when Eric and Sherri were doing the services, but when she got home things were done that she expected to be done. She always left work at 5:00 and got home around 5:30, so she could take care of him again. She was home from 5:30 on during the first month and was around all the time during the first week following surgery, which apparently was around January 5. She says that she thinks that people who provide home attendant care are paid more than she earned in her day job. Her son has CPR training. He lived with one of his friends. The other lady, her sister, had no training. [Magistrate s opinion, pp 2-4.] Defendant first alleges error in the magistrate s awarding an attorney fee on the medical bills from University of Michigan. In plaintiff s filing of his initial application in June of 2006, he indicated that he was seeking to have outstanding medical bills paid. In his amended application, filed in February of 2007, he requested an attorney fee on those medical bills as they remained unpaid. Those medical bills were finally paid, almost one year after plaintiff filed his application. However, although plaintiff s counsel had requested that the bills be paid through his office, presumably to negotiate a fee from the hospital, defendant sent the payments directly to the hospital. The magistrate awarded a 30% attorney fee, in addition to the payment made by defendant, stating that the bills were previously unpaid, and plaintiff s attorney s efforts to collect the payment of those bills clearly resulted in their payment by defendant. He went on to state that these efforts included the time and expense of taking the deposition of Dr. Graziano and attending and crossexamining the deposition of Dr. Gross. Since defendant did not send the payment through plaintiff s attorneys offices as requested, he ordered defendant to pay the attorney fee directly to plaintiff s attorney. The magistrate relied on the language of MCL and Donoho v Wal-Mart Stores, Inc, 2004 ACO #142, 1 and other cases cited therein to support his attorney fee award. Defendant argues that the case law underlying the magistrate s interpretation of 315 is merely dicta from the Michigan Court of Appeals decision in Boyce v Grand Rapids Asphalt Paving Company, 117 Mich App 546 (1982) which has been followed in other cases without further reference to the statute or its history. Defendant goes on to argue that the case law is a misinterpretation of the statute. It acknowledges that it cannot reasonably hope to convince this Commission to disregard that case law, but raises the issue for possible review at a different level. We agree with defendant only in its keen perception that it has not convinced us to disregard the case law on this issue. 1 Relying on Boyce v Grand Rapids Asphalt Paving Company, 117 Mich App 546 (1982). 3

4 Defendant next argues that the magistrate s award of sixty hours in attendant care benefits for plaintiff s stepson is not supported by competent, material and substantial evidence on the whole record. Defendant points out that the hours listed in plaintiff s Exhibit #5 are inconsistent with the testimony at trial that his stepson left at 5:30 p.m. when his wife arrived home. Plaintiff agrees with defendant on this point, and so do we. Eric Tallman, plaintiff s stepson is entitled to be paid for his services at 2.5 hours/day, rather than 4 hours/day, for a total of 15 days. The total number of hours is 37.5, as opposed to the 60 hours awarded by the magistrate. Defendant s last argument also deals with the award of attendant care, this time to plaintiff s wife. Defendant argues: Having adopted the recommendations of Dr. Graziano as to the extent and duration of the need for attendant care, the magistrate erred in awarding plaintiff s wife attendant care benefits at any point in time subsequent to April 15, Dr. Graziano, plaintiff s treating surgeon, testified that plaintiff would have needed 24 hour care for the first 30 days that he was home. Plaintiff returned home after his surgery on January 9, Thereafter, Dr. Graziano stated that he would need attendant care 12 hours/day for 14 days, 8 hours/day for 4 weeks and 4 hours/day for 4 weeks. All care after the first 15 days was provided by plaintiff s wife. Therefore, she would have been entitled to reimbursement for the maximum 56 hours/week until the last 4 weeks, when she would only be entitled for reimbursement for 28 hours/week. Defendant asserts that the magistrate s order of reimbursement for attendant care by plaintiff s wife at 56 hours/week should have only gone through March 18 th, rather than March 26 th. The following 4 weeks of attendant care would be paid at 28 hours/week and end as of April 15, Plaintiff agrees that the magistrate had slightly miscalculated the time period for attendant care, but came to a different calculation than did the defendant. Plaintiff set forth the correct calculations and chronology in his brief at page 13. We reprint that summary and adopt it as consistent with our own findings: Dr. Graziano ordered 24 hour a day attendant care for the first 30 days after discharge. The 30 day period would have expired on 2/7/06. After the initial 30 days of attendant care, Dr. Graziano ordered 12 hour a day care for the next 2 weeks. That period would have expired on 2/21/06. Beginning on 2/22/06, Dr. Graziano ordered attendant care of 8 hours per day, seven days per week for the next 4 weeks. This would have brought the time period during which Ms. Jacko was providing at least 56 hours of attendant care per week up to 3/21/06, rather than 3/25/06 as suggested in paragraph 3 on page 6 of Magistrate Harris Opinion. This total time period encompasses weeks at 56 hours per week. Ms. Jacko would have provided 576 hours of attendant services during this time frame, at a rate of $13.53 per hour for a subtotal of $7,

5 Dr. Graziano also ordered another 4 weeks of attendant care at a rate of 4 hours per day for 7 days per week. This time frame ran from 3/22/06 through 4/18/06. Four weeks of attendant services at the rate of 28 hours per week comes to 112 hours. Given her hourly rate of $13.53, the Defendant owes the Plaintiff another $1, through 4/18/06. The Plaintiff is entitled to a total of $9, for the attendant services provided by Linda Jacko. [Plaintiff s brief, p 13.] We modify the magistrate s decision as set forth in our opinion above. In all other respects, the magistrate s decision is affirmed. Commissioner Grit concurs. Martha M. Glaser Donna J. Grit Chairperson Commissioner 5

6 DALE N. JACKO, PLAINTIFF, S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET # GENERAL MOTORS CORPORATION, DEFENDANT. RIES, COMMISSIONER, CONCURRING IN PART AND DISSENTING IN PART General Motors is not correct in asserting that it cannot reasonably hope to secure relief from this Commission despite its meritorious arguments regarding this issue of the attorney fees owed to plaintiff s attorney. Four months before General Motors filed its brief in this case, I wrote an opinion setting forth a basis to conclude that the provider could be held responsible for a portion of plaintiff s attorney fee that is attributable to medical expenses. [Pereira v Industrial Structures Commercial & General Contractors, 2007 ACO #248, pp 6-13.] I noted, however, that controlling precedent from the appellate courts dictated a rejection of any attempt to place the obligation to pay an amount equivalent to plaintiff s attorneys fee on the provider. I adhere to that precedent, with the further observation that the viability of the argument of placing the obligation on the provider took a hit in the lead opinion of the unpublished disposition by the Court of Appeals in Petersen v Magna Corporation, Court of Appeals Nos , , released April 17, 2008, lv pending. 1 Further, in an opinion published after most of this opinion was written, the Court of Appeals rejected the argument posed by defendant herein. Harvlie v Jack Post Corporation, Mich App (Docket No ; released August 21, 2008). In Harvlie, supra, at slip opinion, p 3, the Court noted three pivotal sentences and held that the second of these three pivotal sentences 2 addresses the consequences of an employer s failure to pay medical expenses and authorizes a magistrate to order the employer to reimburse either the injured claimant or his insurance provider for the reasonable medical expenses incurred. [Id., p 4.] There are certain principles. First, the attorney plaintiff retained to (inter alia) address the payment of the medical bills is entitled to payment for services rendered. R408.44; Rule 14 was specifically amended to allow for this, but not until The significance of this amendment is that the published cases from the Court of Appeals directly addressing the entitlement to reimbursement 1 [W]e cannot conclude that the legislature intended to make the medical providers pay attorney fees on the reimbursement. [Whitbech, p 9.] However, the concurring opinion would not read G315(1) as precluding the proration of a portion of the attorney fees to the provider. [White, p 1.] However, the dissenting opinion, on this issue, asserted that the language of MCL (1) only permits a workers compensation magistrate to prorate any such fee between the medical care provider and the employee who received the medical treatment. [Zahra, p 1.] 2 I refer to this sentence as the ninth, or penultimate, sentence of MCL (1). 6

7 of the attorney fee that plaintiff incurs in having the medical bills paid do not apply the amended rule. In particular, Boyce v Grand Rapids Asphalt Paving Company, 117 Mich App 546 (1982); lv den, 417 Mich 1023 (1983), refused to address the issue because the amended rule did not apply to the case and the rule in effect precluded the attorney for plaintiff from receiving a fee on the unpaid medical expenses from anyone and, therefore, who had to pay an attorney fee was irrelevant. However, now that the rule has been amended, who is ultimately obligated to make the payment is highly relevant. As Justice Corrigan has observed, [t]he question is not whether the prevailing attorney should receive a fee, but from whom. 4 If the Act were otherwise silent on the matter, the attorney retained to address the payment of the medical bills would look to the party retaining him or her for payment. 5 This is the general rule, but the Legislature can enact exceptions to general rules and, in the next to last sentence of MCL (1), the Legislature has created a fee-shifting provision. (The next, and last, sentence of MCL (1) refers to prorate, which is something else, 6 and will be discussed below.) The next-to-last sentence of MCL (1) is, in my opinion, the ONLY provision which authorizes plaintiff s attorney fee to be reimbursed by another entity and it provides as follows: If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the worker's compensation magistrate. This provision is ambiguous because, while it clearly states that the employee is to be reimbursed for the expenses incurred, it does not identify who makes the reimbursement. However, the provision is clear in referring to a process of reimbursement and in identifying what is reimbursed as the reasonable expense. In Stankovic v Kasle Steel Corporation, 2000 ACO #124, at pp 3-5, 7 Commissioner Leslie indicated that he would hold that the provider is the party that must make the reimbursement of the reasonable expense: That [next to the last] sentence [of MCL (1)] states that reimbursement for medical expenses is to be made to the employee or to the party to whom the unpaid expenses may be owing. In no way does this language, reasonably 4 Donoho v Wal-Mart Stores, Inc, 474 Mich 1057 (2007), (Corrigan, J., concurring) emphasis supplied. 5 Gilroy v General Motors Corporation (After Remand), 438 Mich 330, 340 (1991). 6 See, Neuhaus v Pepsi Cola Metropolitan Bottling Company, 480 Mich 1000 (2007), where the Supreme Court remand[ed] this case to the Court of Appeals for consideration, as on leave granted, of whether the WCAC properly awarded an attorney fee on plaintiff s medical benefits award. In answering this question, the Court of Appeals shall consider whether the WCAC correctly construed the term prorate, as it is used in MCL (1). 7 This case is referenced in both Justice Corrigan s concurrence in Donoho, supra, and in Judge Zahra s opinion in Petersen, supra. 7

8 interpreted, create an obligation on the part of the employer to pay fees over and above the obligation to pay the medical benefit. [Id., at p 3, Emphasis supplied.] Until fairly recently, I agreed with this passage, because I read it as saying the employer must reimburse medical expenses, attorney fees are not medical expenses, therefore the employer is not responsible. I failed to note that Commissioner Leslie added a word to MCL (1): whereas the penultimate sentence of MCL (1) refers to the reimburse[ment] of reasonable expenses, Commissioner Leslie transformed the sentence into a reference to the reimburse[ment] of medical expenses. This is not proper statutory interpretation, because it adds a word to the statute and limits the phrase reasonable expenses to medical expenses. The statute contains no such limitation and [i]t is a well settled rule of construction that the courts should not undertake to make the legislature say what it has not said." Burdick v Harbor Springs Lumber Co, 167 Mich 673, 681 (1911). Commissioner Leslie s conclusion may prove to be at least partially correct: To the extent that the employee paid for medical expenses he or she owes the fee. To the extent that medical providers are paid directly, they owe the fee. [Stankovic, supra, p 3 (Leslie, concurring).] However, Commissioner Leslie s conclusion is not complete. I began with the observation that the employee s attorney was entitled to be paid for services rendered in having the medical expenses paid. That expense, that attorney fee, if the employee must pay for it, is a reasonable 8 expense incurred and the employee shall be reimbursed for the reasonable expense paid by the employee. Or, to continue the sentence, payment may be made in behalf of the employee to persons (here, the attorney) to whom the unpaid expenses may be owing. Still, there is no answer to the identity of the ultimate payor of the attorney fee. With the caveat that the employee is reimbursed for the expense incurred --- and the expense might be a medical expense (provided by the employee s doctor or hospital or pharmacist of other provider) or it could be a mileage expense (provided by the employee s driver) or it could be a legal expense (provided by the employee s attorney), the statute contains no modifier to the word expense --- Commissioner Leslie s allocation is consistent with the American rule, Gilroy, supra at 340, as modified by the Legislature in the next-to-last sentence of MCL (1). The inquiry can be: who benefits from the payment of the expense? If it is the provider, and particularly the provider with a bill for services rendered that would otherwise be unpaid, the provider owes the amount equivalent to the attorney fee. If it is the employee who benefits through a reimbursement of the medical expenses for which (s)he has already paid but which the employer is now responsible, the employee owes the attorney fee but is reimbursed for that reasonable expense by the employer. This result, however, cannot be obtained from only the last sentence of MCL (1), because this distorts the meaning of the word prorate. If one prorates something, one divides what is already present amongst deserving entities. Here, the contention is that there is an obligation 8 MCL and R408.44; Rule 14 govern the determination of reasonableness. 8

9 to reimburse the expense and, in looking for the statutory authority that creates that obligation, to the next to last sentence of MCL (1) is it. The process of proration that occurs in the last sentence of MCL (1) is in the plaintiff s attorney fee. That fee is calculated on wage loss benefits, and none of that portion of the attorney fee is shifted to anyone but plaintiff. But, the attorney fee is also (after 1979) calculated on medical benefits and that attorney fee can be seen as an expense which shall be reimbursed and, as a result, can be shifted. It is at this point where it is necessary to prorate. In one of the earliest cases to discuss the reimbursement of plaintiff s attorney s fee attributable to medical expenses, Sikkema v Taylor Carving, 1992 ACO #469, pp 1-2, the Commission wrote as follows: Defendants Fund and Taylor Carving next argue that the magistrate erred as a matter of law in finding defendants responsible for payment of plaintiff s attorney fees on awarded medical benefits. * * * Upon review, we are not convinced that the Magistrate erred in awarding attorney fees on the additional medical benefits, and we therefore affirm the award. Defendant Taylor Carving is responsible for payment of the additional medical benefits incurred during the 52 weeks following the injury date. Defendant Fund is responsible for the additional awarded benefits incurred thereafter. Moreover, both defendant Taylor Carving and defendant Fund are responsible for a portion of the attorney fees assessed on the additional medical expense. The final sentence of MCL (1) provides that the Magistrate as applicable, may prorate attorney fees at the contingent fee rate paid by the employee. We interpret this as meaning that defendant Taylor Carving and defendant Fund are responsible for a maximum of 30 percent (the contingent fee rate paid by the plaintiff) of the total attorney fees assessed on the medical expenses. Sikkema is an example of a case arriving at a result through such egregiously incorrect reasoning that it calls the result into question, even though the result when properly analyzed is firmly supported by (another part of) the Act. The only employers of which I am aware that have acquiesced in the result in Sikkema are those that have apparently decided that reimbursing the expense the plaintiff has incurred for the portion of the attorney fee attributable to the medical expense is cheaper than pressing the issue in the appellate tribunals. The underlying result of Sikkema, however, is dictated by the next-to-last sentence of MCL (1): plaintiff is entitled to be reimbursed for the reasonable expense he has incurred in obtaining the medical treatment and that expense is reimbursed whether the expense he incurs is at the hands of his medical doctor, his driver, or his attorney. That the last sentence of MCL (1) does not authorize the imposition of an expense equivalent to an attorney fee is the point made by Judge Zahra in his dissent in Petersen, supra, p 2, [S]ection 315(1) of the Worker s Compensation Act merely addresses prorating a fee. However, 9

10 in the sentence just preceding this one, the Legislature has demonstrated the ability to expressly mandate, in the sentence immediately previous, that the employee shall be reimbursed for the reasonable expense paid by the employee. There is no need to free oneself from the constraints of the statutory language 9 to conclude that there shall be reimbursement, the ambiguity rests in the identity of the party that must make the reimbursement. In Commissioner Leslie s concurrence in Starkovic, which Judge Zahra incorporated into his dissent in Petersen, supra, at pp 3-5, Commissioner Leslie advocated that the amendment to MCL (1) by 1963 PA 199, which explicitly allowed for payment of medical bills directly to the provider, also implicitly required that provider to pay an attorney fee. I think it is equitable in some circumstances to require the provider to pay the expense that is the attorney fee, but those circumstances are not present in this case. 10 Equity, however, does not provide the framework for the result in this case. 11 Any conclusion that the provider is obligated to pay the expense must carry with it the conclusion that the employer is not obligated. Such a conclusion cannot be sustained. The next-to-last sentence in MCL (1) is actually the ninth sentence of the subsection. All of the prior sentences either detail the employer s obligation or are silent on the matter of the obligor. 12 The ninth sentence begins with the focus on the employer s actions: If the employer fails, neglects, or refuses to pay what is referenced in the prior eight sentences, consequences attach. It is for this reason that I think that any argument that the employer is not obligated to make a reimbursement of the expense that plaintiff incurs for that attorney fee --- and that is what the argument from the employer that the provider is liable entails --- is profoundly strained, if not simply lacking in merit. I recognize that defendant s argument is presented to us for the purpose of preserving the issue for further review. My conclusion is that defendant has not properly presented the issue, because the provider upon which defendant would prefer to place the obligation is not a party to this case. Yet, there is no question that plaintiff has incurred the expense of an attorney fee to secure payment of the medical bills and no question but that, under MCL (1), the employee shall be reimbursed for the reasonable expense paid by the employee. 9 Id., p I cannot see what the provider did to justify placing the obligation on it. On the other hand, I can see where the employer failed[ed], neglect[ed], or refuse[ed] to pay the expenses, and it is the balance of that ninth sentence of MCL (1) that says the employee shall be reimbursed. 11 Piper v Pettibone Corporation, 450 Mich 565, 571 (1995). 12 The first sentence of Subsection 315(1) states that [t]he employer shall furnish, or cause to be furnished, to an employee... and second sentence states that an employer is not required to reimburse or cause to be reimbursed [certain] charges.... The third sentence begins with the identical phrase. The fourth sentence limits the obligation to pay for attendant or nursing care in some circumstances. The fifth sentence identifies from whom the employee may seek treatment. The sixth sentence provides that the employer or the employer's carrier may... object[] in some circumstances and the seventh sentence details the consequences of the employer having shown a meritorious objection. The eighth sentence provides that the employer shall also supply to the injured employee certain enumerated services. The ninth sentence is the next-to-last sentence and is discussed throughout this opinion, as is the tenth and last. 10

11 If the provider is to be held liable, due process dictates that it have an opportunity to present argument and evidence regarding the matter. Defendant has deprived the provider of that opportunity. The issue is not preserved for review. It may be said, also, that plaintiff has failed to add the provider to this case, but plaintiff is not attempting to recover from the provider the expense of the attorney fee he has incurred. Only the employer is adhering to the result of Commissioner Leslie s concurrence in Stankovic, which result is that the provider is responsible for the expense, and hence the employer has only preserved the argument that it is not responsible for the expense, which is also the result of Commissioner Leslie s concurrence in Stankovic. And, it is that latter result in Stankovic --- to excuse the employer from making the reimbursement --- which cannot be squared with the statutory authority that grants plaintiff a reimbursement of the reasonable expense and does not limit the expense to medical expense. The failure to join the provider in this case has deprived the parties, and this Commission, of the forceful response from the provider which I saw in Periera, supra, which was premised upon (and, unfortunately for the provider, did not move much beyond) the notion that no portion of the payment it receives explicitly takes into account the expense it incurs in obtaining payment for the services it legitimately rendered for which it reasonably expects full 13 payment. The imposition of an expense equivalent to plaintiff s attorney fee upon a non-party, the provider in this case, is a non-event. It is obviously unenforceable and not even respected under the doctrine of res judicata or collateral estoppel. As a result, any assumption that placing the obligation to pay plaintiff s attorney fee upon the provider, who is not a party, works to the benefit of plaintiff is susceptible to rejection long before any check is written. II. Defendant s other issue on appeal is that the magistrate erroneously calculated the amount of its obligation to pay for medical care that is its obligation under MCL Plaintiff agrees and sets forth the calculation in a more easily understood manner than has defendant. The lead opinion modifies the magistrate s order accordingly and I concur in this portion of the lead opinion. Such a conclusion also likely has an impact upon the amount of the attorney fee that may be reimbursed, but not on the entitlement to a reimbursement of that expense. Granner S. Ries Commissioner 13 Or, if not full payment, a payment that is limited only by the cost containment rules issued under the auspices of MCL (2), et seq., of which the provider was aware before beginning to render the service. 11

12 S T A T E O F M I C H I G A N WORKERS' COMPENSATION APPELLATE COMMISSION DALE N. JACKO, PLAINTIFF, V DOCKET # GENERAL MOTORS CORPORATION, DEFENDANT. This cause came before the Appellate Commission on a claim for review filed by defendant from Magistrate Michael T. Harris s order, mailed October 2, 2007, granting in part and denying in part plaintiff s petition for medical and attendant care, as well as attorney s fees. The Commission has considered the record and counsel s briefs, and believes that the magistrate s order should be modified as set forth in our opinion above and affirmed in all other respects. Therefore, IT IS ORDERED that the magistrate s order is affirmed with the modification as stated in the attached opinion. Martha M. Glaser Granner S. Ries Donna J. Grit Chairperson Commissioner Commissioner